There is an important debate going on among conservatives about whether the proposed Federal Marriage Amendment should ban both homosexual “marriages” and homosexual civil unions, or ban only homosexual marriages. I confess that at times I have found myself in agreement with one or the other side of the issue. Apart from the concern that banning civil unions might doom the amendment politically, I had also entertained the thought that a constitutional ban on civil unions would intrude in too specific terms into the proper purview of the states.

But there is a consideration I had forgotten, of key importance to traditionalist conservatives.

Many traditionalists believe there was a fateful flaw in the American Founding. It was that America’s liberal principles, relating to abstract rights and the functioning of government, were explicit, while its conservative principles, relating to the moral and cultural nature of the society, were by and large only implicit. As a result, over time, the liberal principles grew more and more dominant, steadily delegitimizing more and more of America’s conservative substance, until we were reduced to what we are now, the Radically Open Society, inclusive of everything and everyone in the world, and thus unable to protect our society from cultural and demographic forces that are radically incompatible with our way of life. For example, would there now be two or three million Moslems in our midst, including many Wahhabi fanatics and an unknown number of Al Qaeda terrorists, if we had continued to think of ourselves as a basically European, Christian people rather than as a universal democracy whose borders must be open to the people of every culture and religion on the planet? Similarly, would we today be facing the systematic removal of all Christian expressions from our public spaces, if the founders had placed in the Constitution itself their frequently expressed conviction that religion and morality are indispensable supports of free government? The possibility of such disasters did not occur to the Founders, as they assumed the existence and authority of traditional values in America and couldn’t imagine their being radically attacked as they are today. But with the experience of 200 years under our collective belt, we can see that it was a major error on the Founders’ part to fail to make it sufficiently clear in the Constitution and other documents that our society and our form of government are dependent on certain underlying cultural habits and moral and religious beliefs.

Among the conservative principles that formed America were Judeo-Christian sexual morality, the traditional family, and so on. The idea that state law would grant legal recognition to any sexual relationship other than the marriage of a man and a woman is so bizarre, so far outside the historical experience and character of America, that it makes perfect sense that this possibility be explicitly barred by our Constitution. It follows that the Federal Marriage Amendment should ban not only homosexual marriages, but any officially recognized sexual relationship other than the marriage of a man and a woman, i.e., it must ban civil unions, whether homosexual or heterosexual. Apart from pragmatic concerns over whether it could be ratified, such an amendment would clearly be conformity with traditionalist concerns and would not violate federalism, for the simple reason that marriage is fundamental to our whole society, and therefore the definition of marriage, especially now that it is being attacked, properly belongs in our national law.

Furthermore, the amendment should not merely bar courts from legislating homosexual civil unions from the bench; it should bar legislatures from passing such laws. This is not what the the current version of the Federal Marriage Amendment does. The amendment reads:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

There are arguments to be made for this moderate language. For one thing, supporters say that they don’t fear that legislatures—which are dependent on the popular will—would enact civil unions, whereas misbehaving courts face no such restriction. On the other hand, it seems clear that if we are serious about protecting marriage, then we must protect it. When the American people in the 1860s banned slavery, they did not leave any loopholes for quasi-slavery. Neither should we leave any loopholes for marital status to be conferred on non-married couples.

These concerns are met by the Institution of Marriage Amendment, proposed by the Concerned Women for America and other conservative groups:

Marriage in the United States shall consist only of the union of a man and a woman. Neither the United States nor any State shall recognize or grant to any unmarried person the legal rights or status of a spouse.

Instead of saying that no constitution or law shall be construed (by a court) to confer the granting of the legal incidents of marriage to non-married person, which would leave legislatures free to enact civil unions laws, the Institution of Marriage Amendment gets to the radical core of the problem: no non-married person can have the rights or status of a married person, period. This is the kind of clarity that is needed.

Just as it was not possible over the long run for the United States to remain half-slave and half-free, it is not possible for one half of America to be a traditional marriage-based society and the other half to be a homosexual marriage/civil unions-based society. These concepts are so antithetical to each other that one or the other must prevail. The liberals want homosexual marriage—or homosexual civil unions, which will very quickly lead to homosexual marriage—to prevail. If we want to stop them, then heterosexual marriage must prevail.

It seems to me the big concern isn’t that Mass. will have same-sex marriage (bad as that is), but that state courts outside of Mass. will hold that their state has to recognize such marriages. If the U.S. Supreme Court held that the full faith and credit clause must be construed to require the other 49 states to recognize Mass.’s marriages, then one state would in fact be imposing same sex marriage on the entire country.

A limited amendment that prevents the above would be consistent with federalism and much easier to pass than an amendment that, say, prevented civil unions.

Of course, if the Supreme Court is going to say that, based on Lawrence v. Texas, that there is a constitutional right to same-sex marriages, then a Constitutional amendment banning such marriages is the only way to go.

Posted by: Steve Jackson on February 24, 2004 6:55 AM

In answer to the federalism argument, we don’t allow each state to permit or not permit slavery. We have to decide what few issues are fundamental to the survival of this society in the long term, and which are optional. If we believe that traditional concepts of marriage and family are essential to the long term survival of our civilization, then there is no federalism argument.

For that matter, there is no significant federalism argument when we are talking about a constitutional amendment. The state legislatures themselves must ratify an amendment. If 13 state legislatures decide that their powers are being infringed unacceptably by an amendment, then the amendment does not get ratified.

Note that only the First Amendment started out as a limit on the federal Congress and not the states. The right to not have your property seized for public use without just compensation, and many other examples from the Bill of Rights, were not left up to the discretion of each state. Certain things are fundamental.

Posted by: Clark Coleman on February 24, 2004 8:33 AM

I think you’re wrong about this, Mr. Auster. If courts can take a nominalist reading of the word “marriage” in the proposed FMA—and assume that anything can be given by legislatures to same-sex couples so long as it’s not called “marriage”—they can certainly take a nominalist reading of the word “spouse.” As far as I can tell, this language has no legal effect that goes beyond the FMA.

I don’t think it is accurate to take the position that, because courts have been quite creative in their interpretations in the past, that any way that we word the amendment can be defeated by judicial activists. The more specific we get in our wording, the better. Some leftist judicial activists are willing to exercise “raw judicial power” with no pretense that they are interpreting any written language anywhere, while others want to have the “cover” of pretense. The latter want vaguely worded statutes and amendments so that they can exercise their creativity. Those conservatives who always argue that we must not get too specific in our sacred Constitution play right into their hands.

Take a look at the Florida election fiasco of 2000. Initially, all seven Florida Supreme Court justices exercised raw judicial power without any basis in written law or precedent. The initial act of the U.S. Supreme Court was to simply note that the Florida court had provided no basis for its decision, and to request a clarification with some legal basis. (Rather embarrassing, I would think.) Given the public spotlight, and given the public statement of their fecklessness by the Supreme Court, three of the seven refused to go along with the other four on the final decision. This demonstrates to me that not all liberal activist judges behave in the same way when the public spotlight is shone upon their legal exercises.

I have argued before that we need to be specific in the FMA: No provision of any constitution, federal or state, shall be construed to prevent the granting of preference to heterosexual married couples in matters of adoption, child custody, tax credits for dependents, reception of family-based government benefits and pensions, etc. Today’s battle is over marriage, but tomorrow’s battle will be over adoption preferences, and a few years later it will be custody preferences in divorces where one spouse was homosexual and the other was not, etc. It is more respectful of the Constitution to have one amendment than three or four, and more politically feasible as well.

Posted by: Clark Coleman on February 24, 2004 9:06 AM

While I would agree with Mr. Auster that ideally, the law should bar the states from permitting same-sex marriage, polygamy, civil unions, etc., the effect of insisting on a whole loaf is that we’d get nothing. We’d see a repetition of the sad history of pro-life efforts to enact a Human Life Amendment in the 1970s. Because the good guys were unwilling to accept half a loaf (such a state’s-rights amendment that would have restored the status quo ante-Roe), we got nothing. (Or more to the point, we got Casey, Lawrence, Goodridge, and all the other judicial usurpations that built on Roe.)

In citing Lincoln’s observation that the country could not remain half-slave and half-free, which he made in the Lincoln-Douglas debates in 1858, we would do well to remember that three years later Lincoln was supporting a states-rights amendment regarding slavery, which Congress had sent to the states and which would have ensured, not only that the federal government would not have interfered with slavery where it existed, but that the Constitution could never be amended to give the federal government to power to do so. Lincoln thought that the important thing was not to abolish slavery immediately, but to erect a firewall that would keep the “slave power” from extending to the territories and ultimately to the free states. Lincoln believed that slavery needed expansion in order to survive, and that if it were restricted to the Southern states, it would necessarily die out. The amendment that was pending before the states in 1861 would erect that firewall.

Right now, we are in situation that parallels the one in 1861. The important thing is to erect a firewall to keep the Massachusetts rot from extending to the entire nation by judicial fiat. Once we have accomplished that, then we can think about undoing same-sex marriage in Massachusetts and any other state that enacts it through legislation or local judicial usurpation. (In fact, the people of Massachusetts look like they’re already on the way to doing it themselves. The pro-marriage forces there will be a lot more likely to succeed if we get the firewall up now.)

(It might be argued that circumstances obviously led Lincoln to favor the 13th amendment that was ultimately adopted rather than the state’s-rights amendment he favored in 1861. But unless we expect to win a bloody civil war in which the pro-marriage forces will turn the tide of public opinion by force of arms, I don’t think we can expect a parallel change of circumstances in our case.)

Posted by: Seamus on February 24, 2004 9:17 AM

The analogy to an anti-abortion amendment is misleading. The percentage of the public favoring some sort of marriage protection amendment is well above the numbers that have ever favored an anti-abortion amendment. This is very important when it comes to ratification, and even before that when the matter is before the Senate. Senators and state legislators must decide if they want to go against the will of 70-80% of the people, when those people are riled up and the issue is very much on their radar screens.

Because the abortion issue is very much more closely split in this country, state legislators do not want to ratify an anti-abortion amendment of the states-rights variety. It merely throws a hot potato issue out into their hands, where they view it as a no-win issue, with about 50% of the public hating them no matter what they do. A states-rights marriage protection amendment puts the marriage issue perpetually in the realm of state statutes, where legislators will have to address it periodically. It would be more acceptable to these legislators to have an authoritative amendment NOW, while there is huge support for it, and never have to deal with the issue again.

Posted by: Clark Coleman on February 24, 2004 10:20 AM

The polls I’ve been looking at don’t indicate that as many as 70-80% of the people are in favor of a strong amendment banning same-sex marriage in the same way that the 13th amendment banned slavery, regardless of the wishes of any individual states. I think legislators will have no problem resisting such an amendment, since the gay-rights crowd will be a lot more vehement in punishing those who vote for such an amendment than the silent majority will be in punishing those who don’t.

Posted by: Seamus on February 24, 2004 10:47 AM

In that case, Seamus, all is lost and you might as well roll over and give up. It would not matter if the marriage amendment were “merely” a states rights amendment, because the gays will fight it just as venomously, and the silent majority will, if anything, be less excited about it than they would about an outright ban.

I think that concern about the concept of states’ rights is limited to a tiny minority of citizens in this country. That is not an argument against states’ rights as a principle; I personally am strongly in favor of states’ rights where the principle applies, which I do not believe is the case on this issue. It IS an argument about what is feasible politically. Recasting a ban as a states’ rights amendment does just about nothing to help it gain ratification. John Q. Public cannot even give a coherent definition of “federalism” or “states’ rights”, so popularity is not affected by these matters.

Posted by: Clark Coleman on February 24, 2004 10:55 AM

This will be a very difficult fight and so I support the more minimalist position. On the other hand, while I know these things can’t be engineered, it sure would be nice politically if this debate allowed the president to eventually say to the nation, “While I respect the concerns of my conservative friends, after careful reflection I’ve decided to throw my weight behind the more moderate, centrist position which speaks only to the courts and to marriage.”

Posted by: Agricola on February 24, 2004 10:56 AM

Agricola has slightly misstated the “moderate” position, i.e. the position of the current FMA. That amendment would ban homosexual marriage outright, whether if done by a legislature or a court, but would only ban civil unions if imposed by a court.

If Mr. Ponnuru is correct about the liberals simply defining “spouse” as they like, then there would be no point in having any laws or any marriage amendment, including the version that Mr. Ponnuru himself would favor.

By the way, Mr. Ponnuru had a long article at NRO yesterday on the debate he’s having with homosexual marriage advocates concerning the precise meaning of the FMA.

Mr. Coleman makes a factual observation and then a very wrong assertion in his 08:33 AM post.

He is entirely correct that a passing an amendment does not conflict with Federalism — it is an _exercise_ of Federalism, as properly understood. This isn’t to say that there haven’t been bad amendments, which subverted our republican system, such as the 17th. At least 2 others, the 14th and 16th were dubiously ratified. But as properly effected, the amendment process is part and parcel of our Federalist system — it is an exercise of States’ Rights.

But then Mr. Coleman writes: “Note that only the First Amendment started out as a limit on the federal Congress and not the states. The right to not have your property seized for public use without just compensation, and many other examples from the Bill of Rights, were not left up to the discretion of each state.”

This is just flat-out wrong. We’ve discussed this at length here before. If he reads Barron v. Baltimore (1833), the last constitutional case written by John Marshall, that should clear matters up. It deals with the very example Mr. Coleman uses: http://www.constitution.org/ussc/032-243a.htm

As recently as 1900 in Maxwell v. Dow, the Supreme Court said: “In order to limit the powers which it was feared might be claimed or exercised by the Federal government, under the provisions of the Constitution as it was when adopted, the first ten amendments to that instrument were proposed to the legislatures of the several states by the first Congress on the 25th of September, 1789. They were intended as restraints and limitations upon the powers of the general government, and were not intended to and did not have any effect upon the powers of the respective states. This has been many times decided.”

Lastly, Mr. Coleman may be correct in his subsequent remarks that Americans are too ignorant of the framework of our republic to understand be moved by any argument. But this too is part of the problem.

Posted by: Joel LeFevre on February 24, 2004 2:37 PM

To Mr. Auster: I would argue that there is a relevant political analogy with your explicit rights / implicit morality connection, and that is the sole authority of the legislature to make laws / the restricted jurisdiction of the judiciary to CASES.

I agree with you that the Founders could hardly have foreseen the severe breakdown of morality that is now occuring. But at the same time, the Founders understood and made explicitly clear that only the elected representatives of the people can make laws. Not only Art. I but the First Amendment is predicated on that precious truth. Accordingly, the actual _laws_ passed would, it is hoped, reflect the morality of the people they represent.

The larger mistake the Founders made was that no sufficient check was placed on the usurpation of power by the judiciary — and this is as much a State problem as Federal. Because of this, between 2 and 5 individuals can completely wreck the moral and political foundations of our governments.

As I’ve said before, while we face one disaster in this homosexual marriage issue — which we must address directly now — we cannot set aside the larger problem that has enabled this and other catastrophes. We cannot simply propose another amendment every time the courts effect yet another usurpation and through a grenade at the foundations of our insitutions.

Posted by: Joel LeFevre on February 24, 2004 2:49 PM

It is correct, as Mr. LeFevre pointed out, that the Supreme Court interpretations of the Bill of Rights (particularly prior to the 14th amendment and subsequent “incorporation” decisions) has generally been limited to enforcing its provisions against the federal government, not the state governments. However, there are interesting natural law issues that are discussed in the commentary on the Barron case, linked from the bottom of the page that Mr. LeFevre gave. The point there is that a question of jurisdiction was central to the Barron decision, which is not the same as a question of applicability to the states. Quoting from the commentary, which is profitable to read in full:

“In short, state courts are bound to enforce the provisions of the Bill of Rights, but if they fail to do so, the federal courts, lacking jurisdiction, can provide no remedy.”

The ensuing paragraph is apropos but omitted for brevity.

Thus, we have two very different reasons that the Barron decision, and similar decisions, could be decided as they were: (1) The Fifth Amendment et al. have nothing whatsoever to do with state government powers, so they may do as they please. (2) The Bill of Rights, other than the first amendment because of its unique grammatical construction, DOES apply to the state governments. However, because no recourse to federal courts is prescribed in the Constitution for such cases (i.e. a citizen versus his own state’s government), if the various branches of state government fail to uphold the rights contained in the Bill of Rights, there is nothing the federal judiciary can do about it.

While the end result might seem the same, there is a dramatic difference in the underlying legal theories. Analogous cases happen all the time in the law, where a certain act is sometimes outlawed, but no legal agency is given enforcement powers.

Posted by: Clark Coleman on February 24, 2004 3:09 PM

To Mr. LeFevre, I think it would be very difficult, if that is what he is suggesting, to have a formal constitutional provision restricting courts to cases, since all case decisions involve construction of the laws and thus involve writing law to some degree. Determining when courts have gone too far has to be a _political_ matter, so that, when the courts have plainly gone too far, the people and legislatures react and start to pull them back or impeach them. This is what SHOULD have happened decades ago. Certainly Roe v. Wade crossed the line in making up law out of thin air rather than interpreting the law. The utter failure of the American polity to react against the judicial ururpation of the legislative function is the main catastrophe here. As a result, we’re in this pathetic, undignified circumstance of having to debate homosexual “marriage” and trying to put an amendment in the Constitution banning homosexual marriage. The fact that this amendment is necessary is the index of a profound failure in American society.

Posted by: Lawrence Auster on February 24, 2004 3:14 PM

Does anyone recall how “full faith and credit” played out in Jerry Lee Lewis’s 1957 Georgia marriage controversy, which centered around age and consanguinuity? Was every other state required to recognize a 13-year-old second cousin as a lawful wife, whatever their own laws?

Some law officers threatened to arrest him if he entered their jurisdictions, but I don’t think this happened, even when he went to England, where only common law, not “full faith and credit”, would apply.

This case was much closer to a genuine marriage than the parodies taking place today. (Just as Woody’s marriage to “stepdaughter” Soon-Yi, disturbing as it was, was the most defensible arrangement either he or Mia had entered into in decades.)

Posted by: Reg Cæsar on February 24, 2004 3:14 PM

In reply to Mr. Coleman, I am going by John Marshall, not Jon Roland. ;-) Mr. Roland tends to support the Incorporation Doctrine.

The ‘unique grammatical construction’ Mr. Coleman cites has no relevance here. Marshall pointed this out in his argument on the general restrictions on bills of attainder and ex post fact laws in Art. I, Sec. 9, and the specific provision against such _State_ laws in Sec. 10.

Marshall goes on: “This provision, then, of the ninth section, however comprehensive its language, contains no restriction on State legislation… . Had Congress engaged in the extraordinary occupation of improving the Constitutions of the several States by affording the people additional protection from the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language… . These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them.

“We are of opinion that the provision in the Fifth Amendment to the Constitution declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the States.”

The Preamble to the Bill of Rights itself, (though almost never read,) says as much: “The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of _its_ powers, that further declaratory and restrictive clauses should be added …”

Mr. Coleman’s recourse to a distinction between what should be and what courts can enforce is of no practical consequence in this context. (Where it IS of consequence is, by example, in the 14th Amendment which specifically empowered CONGRESS to enforce its provisions through LEGISLATION, but conferred no such authority to the executive or judiciary.)

Posted by: Joel LeFevre on February 24, 2004 3:35 PM

President Bush has just announced his support for a marriage protection amendment:

Mr. Auster wrote: “I think it would be very difficult … to have a formal constitutional provision restricting courts to cases, since all case decisions involve construction of the laws and thus involve writing law to some degree.”

I think Mr. Auster is conceding far too much here, but I will acknowledge first that differences in jurisdiction between Federal and State courts would make it difficult to restrict the actions of BOTH in a single amendment. The State courts can take jurisdiction of cases arising under Common Law, for instance. (I think LA is the exception.)

Where the Federal courts are concerned, I’m hard pressed to know what needs to be added that isn’t already in the Constitution as originally written. The Constitution TWICE defines what is meant by “law of the land” or “law of the union,” and does not include a decision by the Courts, which are the law of the _case_. It’s not merely the courts making bad decisions, it’s also about an error in what the judicial authority itself entails. Art. III “extends” the judicial power in a carefully defined manner that is now simply ignored. As long as the Supreme Court is the final determiner of the limits of its own power, then its power will be limitless.

By now it should be clear that threats of impeachment are meaningless, and Congress has been equally reluctant to limit the Court’s jurisdiction, being fearful of opening what could be a Pandora’s Box, but neither can we always count on passing amendments. I didn’t have an amendment per se in mind — I can’t conceive of how it would be worded. And State interposition is not likely to be useful at this late stage as in the past. But SOMETHING must be done about this. I only throw this out for ideas. If this problem is left, and we take the ‘defeatist’ view on it, it will only grow worse, and we will find ourselves in similar predicaments again and again and again, and with no recourse.

Posted by: Joel LeFevre on February 24, 2004 4:39 PM

I assume Mr. LeFevre refers to Article III, Section 2:

“Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; —to all cases affecting ambassadors, other public ministers and consuls; —to all cases of admiralty and maritime jurisdiction; —to controversies to which the United States shall be a party; —to controversies between two or more states; —between a state and citizens of another state; —between citizens of different states; —between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”

I am convinced of the logical and moral coherence of insisting on the more restrictive wording for the marriage amendment. I have two reservations however. 1) It still does not go far enough. Logically and historically, I believe that the sanctity of marriage in US law began to unravel in the mid 1800s (I’d have to check the date) when divorce was legalized. The acceptance of divorce permits the entry into marriage with a less than serious life-time commitment: there is always the possibility of bailing out if things get too rough after X number of years. Marriage can then come to be seen as orientated (exclusively) for the personal satisfaction derived from it. Then from the sexual satisfaction derived from it. Then as an obstacle to sexual gratification… Get the logic? The tragic phenomena of abortion and unchastity abounding in our country has its remote root in the permitting of divorce, which uncoupled sexual love from family love. Now, to be totally coherent, should we add to the stricter-worded amendent the provision that marriage be forever? That is, that remarriage be absolutely disallowed while the original spouse still is living?Strictly speaking, protection of the sanctity of marriage requires this stronger proviso. This brings me to my second reservation. 2) Can I be absolutely sure that the stronger-worded amendment will pass into law? Given actual circumstances, if it does not we shall have to live with homosexual and all sort of aberrant unions aping the institution of marriage. But there is no living in this last state, it spells the ruin of a society.
Therefore, though the stronger formulation for the amendment has all my sympathy, my political sense tells me that it does not stand a good chance for approval. Given that the future of the county DOES ride on this question, I cannot convince myself to support it. I would encourage the writer to reconsider. What realistic chance does it have? To fall short now is ruin. I don’t believe I am being too dramatic.

Posted by: Edgar Ritter on February 24, 2004 5:42 PM

Thanks to Mr. Cella for providing that excellent link, which I read with interest.

As to his question: “How was this principle defeated? By the Due Process and Equal Protection clause?”

These provisions, and others, have certainly been cited in pretense for the judiciary’s usurpations. But I think the real answer is as simple as that offered by Boss Tweed: “They way to have power is to take it.” The courts have done just that; the question is, how can the people take it back?

Posted by: Joel LeFevre on February 24, 2004 6:17 PM

As Mr. Ritter properly notes, heterosexuals have done far more damage to the institution of marriage than homosexual have. I wrote about that very fact here:

I find myself unable to comprehend the defeatism. I guess there is no way to prove or disprove the proposition that it will be difficult to ratify a marriage amendment, other than to proceed and see what happens. I personally cannot imagine that it will be likely to fail. We shall see.

Posted by: Clark Coleman on February 24, 2004 6:41 PM

While all discussion seems to be directed toward amending the US constitution, that is a long and difficult process, and in the meantime, activists can wreak havoc. I would think the first priority would be to hold Massachusetts’ legislators feet to the fire by demanding a “Bill of Address” to remove the four responsible justices from office. Under Massachusetts law, I am told, a simple majority of both houses and the signature of the governor can remove these officials, and no cause need be specified. So for all those legislators who say “I am against gay marriage, but oppose amending the constitution,” here is a quick way to take action. Admittedly, this does not overturn the decision, but you can bet the impact would stop judges all around the country right in their tracks.

Posted by: thucydides on February 24, 2004 6:49 PM

The Massachusetts Legislature has held a State constitutional convention to debate amending the State constitution and ban homosexual ‘marriage.’ The debates are scheduled to resume on March 11.

I’m not sure how things would work out if such a State amendment passed, as the State Supreme Court relied on previous Federal Supreme Court rulings, particularly Loving v. Virginia.

Posted by: Joel LeFevre on February 24, 2004 7:14 PM

The language of the FMA in its present form effectively precludes state legislatures from passing either homosexual marriage laws, or homosexual civil union laws. The words “shall be construed to require” imply that even if a state were to enact a homosexual marriage statute, it could not be construed to authorize homosexual marriages. It is significant that the FMA uses the word “shall,” since this term has traditionally been interpreted to eliminate judicial discretion. So even though the proposed amendment does not explicitly declare that legislatures shall not pass such laws the intended consequence is clear. A fundamental principle of both statutory and constitutional construction holds that courts must give effect to the plain meaning of the text and in the absence of vagueness courts cannot circumvent the plain meaning. I do not see how even a liberal, activist court could reasonably read an ambiguity into the text of the FMA. The FMA also bars civil unions because it disallows the award of “the legal incidents [of marriage]” to non-heterosexual couples.

Posted by: Manny Alvarez on February 24, 2004 7:35 PM

To Mr. Alvarez,

According to Ponnuru’s article at NRO which I linked above, most advocates of the FMA insist that it would not bar legislatures from instituting civil unions. But the issues get very complicated, as you will see if you read the piece.

To Thucydides,

If judges can be removed that easily in Massachusetts, that’s what they should go for. Hey, it’s much easier to remove one of their judges than amend their constitution.

Posted by: Lawrence Auster on February 24, 2004 7:42 PM

In response to Mr. LeFevre’s comments regarding the constitutionality of applying U.S. Supreme Court decisions regarding substantive rights to the states: that issue was resolved (for better or worse) over a century ago. After the Civil War, many feared that the states would not provide protection to the newly freed slaves. Thus, the Fourteenth Amendment was adopted to ensure that states would continue with their historic trend of protecting individual liberties. In the 1930s a shift occurred that marked the beginning of the federal government’s role as the primary protector of individual rights. The application of the Federal Bill of Rights to the states prompted this shift. “Selective incorporation” emerged as the process whereby the U.S. Supreme Court selectively applied the Bill of Rights to the states. For the next forty years, the Court continued its selective application of the Bill of Rights by examining issues on a case-by-case basis. Therefore, federal courts gradually became more active in this area. As a result, civil liberties law became almost exclusively federal.

To Mr. Auster: Thank you for your suggestion. I will read the NRO article and get back to you.

Posted by: Manny Alvarez on February 24, 2004 7:58 PM

Mr. LeFevre says I’m conceding too much when I write that “[I]t would be very difficult … to have a formal constitutional provision restricting courts to cases, since all case decisions involve construction of the laws and thus involve writing law to some degree.”

But whenever a federal judge applies the law to a case, he is in effect adding further provisions to that law. He is saying, “In this sort of situation, this law has such and such meaning.” His ruling has the same effect as if the original legislators had written a provision to the law, saying, “in such and such situation, this law has such and such meaning.” In Plessy, for example, the Supreme Court said the 14th Amendment did not bar a passenger train company from maintaining separate but equal cars for blacks and whites. They were in effect filling out the 14th Amendment. So this is what judges do all the time, even when they are judging correctly and not legislating from the bench.

Where the line must be drawn is where judges make a decision that has no basis in the written law at all. Griswold, Roe, Grutter, Lawrence, and the recent Massachusetts case are examples. And the judges in these case are often pretty explicit about the fact that they are re-writing the law according to a “higher standard” or “evolving understandings” or even “international opinion,” not interpreting the law. There should have been calls for the impeachmeht of Blackmun and his colleagues when Roe was handed down.

Posted by: Lawrence Auster on February 24, 2004 8:13 PM

Mr. Auster wrote: “But whenever a federal judge applies the law to a case, he is in effect adding further provisions to that law. He is saying, “In this sort of situation, this law has such and such meaning.”

OK, but since the jurisdiction of the Federal courts applies only to cases, the holding in such a case becomes nothing more than _the law of the case_ and NOT “the law of the land” as defined by the Constitution. It is binding only on the parties to the case and not to everyone generally — until recently. (This is not the same situation as the act of judicial review.)

The Plessy case is perhaps instructive in this regard. If the Court had ruled otherwise, it would not have changed “the law of the land.” It would have been declaratory of the meaning, but the 14th Amendment, again, provided for how it was to be enforced — by congressional legislation, (as with the 13th and 14th). The Amendment conferred NO direct authority to the President or to the Courts. Plessy might not be a good example in other ways, since the Reconstruction Debates tend to support the view the Court held as its original intent. This is especially true with segregated schools and anti-miscegenation laws. When the Court overturned these, the Court WROTE A NEW LAW.

I’m admittedly not articulating this well, but I think that Mr. Auster is conceding a view of judicial authority that is relatively recent, and not consistent with the evolution of Anglo-Saxon thought that found its expression in the Constitution.

Posted by: Joel LeFevre on February 24, 2004 8:54 PM

To Mr. Alvarez: The Supreme Court’s decision in Hurtado v. California, 1884, was controlling until 1925, and held that the 14th Amendment’s Due Process clause did not require a procedural protection found in the Bill of Rights to apply to state prosecutions. The only exception I’m aware of to this doctrine was in 1897 (concerning the taking of land without compensation). (The Maxwell case cited above for instance concerned the right to trial by jury.)

It was not until 1925, in Gitlow v. New York, that the incorporation of other provisions of the Federal Bill of Rights really began. And the Court has wreaked havoc as a result of this, perverting those provisions and ramming their noxious ‘interpretations’ down the States’ throats.

During the congressional hearings for Justice Janice Brown, Sen. Specter grilled her on her questioning of the Inc. Doct. noting that “the Supreme Court had incorporated the Bill of Rights into the 14th Amendment.” Very honest of him. The Court did this. The authors of the Amendment didn’t do this, and no subsequent amendment did this, therefore the Supreme Court rewrote the Constitution. Only Congress was given the power to enforce the Reconstruction Amendments. The Court has not only arrogated to itself this power, but has extended its usurped power by illegitimately adding to the Amendment itself.

Even the 9th Amendment has been so misused, as seen in the disastrous Conn. v. Griswold case.

It makes much more sense when I read it than when I try to restate it. In any case, I think we all agree that the usurpation of power by the judiciary is a serious problem, regardless of how poorly I expound it. I started off asserting that if we don’t find a way to curb it, then this (marriage) is but one battle — a vitally important one — leading to many more we will face in the future.

Mr. Auster initially despaired of finding any solution. But if we don’t, we can win a few battles here and there maybe, but we’ve lost the war.

Posted by: Joel LeFevre on February 24, 2004 9:35 PM

I just read Mr. Ponnuru’s NR article on the FMA, and I am almost as puzzled by it than before I read it! However, Mr. Ponnuru did a youman’s job at explaining the different positions.

Unlike Mr. LeFevre and others here, I am no lawyer. But I know a good or a bad bill/ammendment when I smell one, and I “smell” a bad ammendment here! Why? Because, as with so many supposedly “conservative efforts” since since the Barry Goldwater days of the mid-60s, there is ALWAYS a sentence of phrase in these documents that lessens the load or creates “wiggle room” for moderates. I’m sorry (actually, that’s just an expression—I am NOT sorry!), but getting “something” (a bad bill or ammendment that only gives us part of what we want) rather than “nothing” (losing the whole enchilada because we somhow got rid of the sencond sentence) is the Neo-con or wimpy way out—no offense to those here who support the ammendment as written! We SHOULD go for the entire enchilada, and remove that second sentence. Enough ambiguity and enough prevaricating!! The mad dog left isn’t taking a cautious, “one step at a time” approach to this—they are in out faces over it!

By the way, who wrote this FMA? Mr. Ponnuru? A “log cabin Republican”?

Thank you for the link ti Mr. Ponnuru’s article.

Posted by: David Levin on February 24, 2004 9:44 PM

My sincere apologies for the awful typos in my above paragraphs. I SHALL be more careful.

Posted by: David Levin on February 24, 2004 9:49 PM

Apologies to Mr. Levin. I meant only that I aspire to be a lawyer. I’m far from becoming one.

Posted by: Joel LeFevre on February 24, 2004 10:02 PM

The text of the FMA was written originally by Robert George and Mary Ann Glendon and they believe that the language is sufficient to exclude both homosexual marriage and most kinds of civil unions. Contra Mr. Ponnru’s claim that Robert George drafted the text with the intention of allowing for civil unions, a recent article in the Washington Post by Alan Cooperman stated that “[t]wo of the amendment’s principal authors, professors Robert P. George of Princeton and Gerard V. Bradley of Notre Dame Law School, contend that the opening sentence also would forbid some kinds of civil unions. They argue that future courts would have to interpret the amendment to protect not just the word ‘marriage,’ but also its essential meaning — in the same way that, if the Constitution forbade states from creating ‘navies,’ they clearly could not establish ‘flotillas’ or ‘armadas,’ either.” http://www.constitutioncenter.org/explore/ConstitutionNewswire/4124.shtml

Mr. Ponnru may have personal access to Prof. George, but I believe that the text of the amendment would make it difficult to extract a right to civil unions which are essentially the mirror images of conventional marriage. Of course, legislatures would probably be free to bestow certain rights with respect to health insurance, inheritance, taxation, etc on homosexual couples and I suppose one could call that a “civil union.”

Posted by: Manny Alvarez on February 24, 2004 10:43 PM

Today’s NY Times reports that:

“A handful of conservatives argue that the sentence defining marriage as heterosexual should preclude any provision of marital benefits to same-sex couples, no matter what the name.

“A few gay legal advocates contend that future courts might interpret the amendment to block enforcement of any laws conferring benefits on same-sex couples.’Constitutions are interpreted over time,’ said Evan Wolfson, executive director of Freedom to Marry, a group opposed to the amendment. ‘You don’t write a gamble like that into the Constitution.’

“Robert H. Bork, the conservative former judge and former Supreme Court nominee and a leading drafter of the amendment, called that argument ‘preposterous.’ He said that the text clearly restricted only courts, not legislatures. What is more, Mr. Bork said, the public debate over the amendment would determine how any court interpreted it. If voters approving the amendment believed it meant one thing, courts would be hard pressed to say it meant another.”

There are two problems with Bork’s statement. First, the argument that the FMA applies only to courts and not legislatures rests on an illusory distinction. On Bork’s reading, a state legislature can enact a law creating homosexual marriage, but when it is challenged in court, the court must then apply the FMA and strike it down as unconstitutional. So why would a legislature pass a homosexual marriage law if it is going to be automatically invalidated by the court?

Secondly, how on earth is a court interpreting the amendement supposed to determine what was in the collective minds of the voters when they voted for it?

Posted by: Manny Alvarez on February 24, 2004 11:45 PM

Mr. LeFevre is too kind. I want him on MY side when he graduates from the Bar!

While dishing out thanks, I appreciate very much Mr. Alvarez’s links and comments. I know the word “shall” is important, but I’m afraid I need the rest explained slowly and carefully!

I just have that nagging fear that a Federal judge like Judge Marianne Feilzer (sp?) will do to the FMA what she did to Prop. 187. I believe that Fed. and local judges—like the empty robe in SF—will find a way to defy the law. I also see Bush’s sudden support as meaning the Ammendment is not as tough as it should be (wiggle room, again).

Posted by: David Levin on February 25, 2004 1:27 AM

“I just have that nagging fear that a Federal judge like Judge Marianne Feilzer (sp?) will do to the FMA what she did to Prop. 187….”

Which shows that liberty, self-government, constitutionaism, rule of law, ultimately depend not on the documents and laws that make up the government, but on the eternal vigilance of the people and their will to stand up forcefully against any violations of their liberty, self-government, and rule of law. Modern liberals and conservatives, believing human nature to be naturally good (i.e., naturally democratic), believe that all you need is the documents and the laws. But this is a delusion. Since men will naturally seek to _pervert_ their country’s laws so as to satisfy their own selfish desires, the only way to stop that from happening is that other men, with better desires and stronger wills, stand up against them to defend their country’s laws. Liberty and self-government rest ultimately not on laws but on the heart’s blood of people who will protect the laws when attacked. This is what liberals cannot understand, and what conservatives have forgotten.

If Americans had had the quality I’m talking about, they would have been in the streets decades ago. In 1973 there would have been a movement to impeach every judge who voted for Roe v. Wade. If that had happened, we wouldn’t now be in this pathetic and demeaning position of seeking an Amendment to the Constitution stating that marriage consists of a man and a woman!

Posted by: Lawrence Auster on February 25, 2004 1:56 AM

Dear Messrs. Lefevre and Levin:

If I have given you the impression that I think the FMA will actually prevent homosexual marriages from becoming a national reality, I apologize.

I have no doubt that Bush’s brain (a.k.a. Karl Rove) is supporting the amendment because he knows it will never be ratified. Moreover, the ratification process (which will be a three ring circus and will be used as a vehicle by Hollywood and the media to abuse and further demonize conservatives) could take years, i.e. nothing will come of it until after the election. Bush & Co. are evidently aware that conservatives in the party have grown lukewarm and they felt they had no choice but to pose as cultural conservatives.

Even if the federal constitution were amended, it would only be a matter of time before courts, liberal activists and the media would begin to moan and groan that the FMA was unworkable, discriminatory and horribly oppressive. Since the left has effectively won the culture war, the public would be bludgeoned with pro-sodomy propaganda until it clamored for the repeal of the “dreadful” law. In the end, it would go into the dustbin of history along with prohibition.

Posted by: Manny Alvarez on February 25, 2004 1:57 AM

I bow to Mr. Auster’s superbly pinpointed reply:

“Which shows that liberty, self-government, constitutionalism and the rule of law ultimately depend not on those documents and laws that make up the government but on the eternal vigilence of the people and their will to stand up forceably against any violations of their liberty, self-government and rule of law.”

Wow! That says it all.

Mr. Alvarez seems pessimistic about our chances for turning this thing around. The noses of the camels have been in the proverbial tents for too long, very true. But I also share Ms. Auster’s previous comments in other threads which give us some hope. And the above quote from Mr. Auster makes me think that while the current trend is going against conservatives and the GOP (I see Kerry and the Democrats winning big in November), I see it swinging back the other way on social issues like gay marriage. They (the gay and lesbian left) have the country in a vice grip and it’s going to take some cojones from some mediocre politicians (like Gov. Ahnold and other RINOs) to stand up and lead. The problem they have and will have, is they have powerful left-wing friends who they admire and are beholden to (Didn’t Ahnold have billionaire wacko George Soros on his “Team”?) who won’t let them take the country back to the 50s—which is, as I see it, where we need to be (except for segregation, of course). In the 50s, our laws were respected. Young people weren’t “trying to bring it all down, man”. Today, we are bordering on anarchy. It seems the 60s have never left our lives.

Posted by: David Levin on February 25, 2004 5:11 AM

A further comment onthe issue of Jerry Lee Lewis’ marriage.

I think the issue at stake here is whether the “full faith and credit” clause was intended to mean that every state had to accept every other state’s peculiar definitions of marriage, or whether it was simply intended to mean that any marriage that a state would consider fundamentally valid has to be accepted even if it were not performed in that state.

In other words, is the clause meant to allow any state to force its definition of marriage on other states, or is it designed so that any person having a fundamentally valid marriage does not need to get the marriage renewed every time they move to a new state?

Posted by: Michael Jose on February 25, 2004 6:54 AM

I have to agree with Mr. Auster on this. Civil unions would require the government to protect more immorality. There is no difference between a civil union and a marriage. The amendment is a waste of time unless it bars civil unions. It is perfect for politicians: pretend you are doing something so you can get re-elected; show one face to those wanting to protect marriage and another face to those wanting civil unions. Would I vote against an amendment that failed to exclude civil unions? Yes, because it is a fraud.

Posted by: P Murgos on February 25, 2004 9:54 AM

The lack of a difference between a marriage and civil union will become in a few years. Homosexuals and their supporters will ensure that in polite company they could refer to themselves as married; “civil union” will suffer the same fate as “Merry Christmas,” “Miss,” and “God” in the Pledge of Allegiance.

Posted by: P Murgos on February 25, 2004 10:52 AM

Are the courts required to review or consider every irrational act of society in the so-called quest for civil rights and tolerance? And are we to quietly submit to their ‘interpretations’ which might, in some instances, prove damaging to the good order of society as a whole?

Posted by: Edwin Vogt on March 13, 2004 10:30 PM

Mr. Vogt makes a strong point. Is it the role of the courts to interpret the laws and not make them? THe legislatures are the direct voice of the people. Until it is heard from, then the judiciary should shut up and listen!

Posted by: Joan Vail on March 14, 2004 10:25 AM

Break period trivia: Many believe that G-d is not mentioned in the Constitution of the United States. Yet it is vividly displayed for all to see. It is found at the conclusion of the document at the mid-portion of Article VII: in the Year of our Lord!

Posted by: Edwin Vogt on March 24, 2004 10:44 PM

Also, there is an oblique reference in Article I, Section 7:

“But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.”